Rule2024-27555
Law Enforcement; Criminal Prohibitions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 25, 2024
Effective
December 26, 2024
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The U.S. Department of Agriculture (Department) is revising the Forest Service (Forest Service or Agency)'s criminal prohibitions to enhance consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. The Department is also streamlining enforcement of the Forest Service's criminal prohibitions related to fire and use of vehicles on National Forest System roads and National Forest System trails by eliminating the requirement to issue an order for enforcement.
Full Text
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<title>Federal Register, Volume 89 Issue 227 (Monday, November 25, 2024)</title>
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[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Rules and Regulations]
[Pages 92808-92816]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27555]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 261
RIN 0596-AD57
Law Enforcement; Criminal Prohibitions
AGENCY: Forest Service, Agriculture.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture (Department) is revising
the Forest Service (Forest Service or Agency)'s criminal prohibitions
to enhance consistency of the Forest Service's law enforcement
practices with those of State and other Federal land management
agencies. The Department is also streamlining enforcement of the Forest
Service's criminal prohibitions related to fire and use of vehicles on
National Forest System roads and National Forest System trails by
eliminating the requirement to issue an order for enforcement.
DATES: This rule is effective December 26, 2024.
FOR FURTHER INFORMATION CONTACT: Gene Smithson, Deputy Director, Law
Enforcement and Investigations, 703-605-4730 or
<a href="/cdn-cgi/l/email-protection#4e192722232b3c601d23273a263d21200e3b3d2a2f60292138"><span class="__cf_email__" data-cfemail="f1a6989d9c9483dfa29c988599829e9fb184829590df969e87">[email protected]</span></a>. Individuals who use telecommunications
devices for the hearing impaired may call 711 to reach the
Telecommunications Relay Service 24 hours a day, every day of the year,
including holidays.
SUPPLEMENTARY INFORMATION:
Background and Need
This final rule revises certain criminal prohibitions in 36 CFR
part 261, subpart A, to enhance consistency of the Forest Service's law
enforcement practices with those of State and other Federal land
management agencies. In addition, this final rule streamlines
enforcement of some of the criminal prohibitions found in 36 CFR part
261, subpart B, which are enforceable only through issuance of an
order, by moving them to 36 CFR part 261, subpart A, which contains
criminal prohibitions that are enforceable without issuance of an
order.
Forest Service law enforcement personnel continue to encounter a
significant volume of violations for simple possession of controlled
substances and drug paraphernalia. Agency law enforcement personnel
routinely deal with under-age alcohol possession on National Forest
System (NFS) lands. These violations pose a threat to the safety of
visitors to NFS lands as well as to Forest Service personnel. This
final rule enhances the Forest Service's authority to address public
safety issues by adding prohibitions relating to controlled substances,
drug paraphernalia, and alcoholic beverages. These new prohibitions
enable the Forest Service to enforce more effectively violations on NFS
lands for simple possession of controlled substances, possession of
alcoholic beverages in violation of State law (for open containers or
under-age drinking) and furnishing alcoholic beverages to minors. The
final rule also authorizes the Forest Service to enforce violations for
the possession of drug paraphernalia if prohibited by State law. These
changes are intended to align the Forest Service's law enforcement
practices more closely with those of State and local law enforcement
agencies.
Additionally, the final rule updates the prohibitions to enhance
protection of persons visiting and working on NFS lands from theft of
personal property and from disorderly conduct by other visitors. The
final rule enhances enforcement of wildfire prevention prohibitions by
moving them from 36 CFR part 261, subpart B, which requires issuance of
an order, to 36 CFR part 261, subpart A, which does not, and by adding
a prohibition banning exploding targets year-round. The final rule also
makes other revisions such as updating the prohibitions relating to
off-road vehicles and updating the penalty for violating the criminal
prohibitions in 36 CFR part 261 consistent with current statutory law.
Summary of Comments and Responses
Overview
On October 3, 2023, the Forest Service published a proposed rule in
the Federal Register (88 FR 68035) proposing to revise the Forest
Service's criminal prohibitions to enhance consistency of the Agency's
law enforcement practices with those of State and other Federal land
[[Page 92809]]
management agencies and to streamline enforcement of the Agency's
criminal prohibitions related to fire and use of vehicles on NFS roads
and NFS trails by eliminating the requirement to issue an order for
enforcement.
The Forest Service received 41 comments during the public comment
period. Eight were from professional and interest groups, 19 were from
individuals, 9 were from State or local governmental entities, and 5
were submitted anonymously. Four commenters supported the proposed
rule, 11 conditionally supported the proposed rule, and 26 opposed the
proposed rule. One of the commenters requested a 90-day extension of
the comment period. Based on the detail in the comments submitted, the
Forest Service determined that it was not necessary or appropriate to
extend the comment period for the proposed rule.
The comments on the proposed rule and the Department's responses
follow.
Comments Outside the Scope of the Proposed Rule
Comment: One commenter was concerned about the Forest Service's
response to requests for law enforcement assistance. One commenter
believed that a lack of law enforcement on NFS lands is a concern given
the increase in crime, wondered why Forest Service law enforcement
officers were not given the tools to handle violations of existing
regulations, and expressed concern about the number of dog leash
regulations. Another commenter recommended removing any penalties for
those who protest commercial activities on NFS lands. Some commenters
were concerned that the Federal courts do not have a juvenile justice
system. Multiple commenters requested that the Forest Service increase
funding for cooperative law enforcement agreements with State and local
law enforcement agencies. Some commenters wanted a prohibition
providing for protection for nude recreation. One commenter was
concerned about recreation fees being charged under the Federal Lands
Recreation Enhancement Act for areas on NFS lands with a development
scale of zero. Another commenter was concerned about not using State
courts for prosecution of prohibitions under the proposed rule.
Response: These comments are outside the scope of the proposed
rule, which does not address the Forest Service's response to requests
for law enforcement assistance, enforcement of existing regulations,
prohibitions on unleashed dogs, enforcement involving protests, the
juvenile justice system, the staffing levels of State and local law
enforcement agencies, funding for cooperative law enforcement
agreements with State and local law enforcement agencies, prohibitions
providing for protection for nude recreation, recreation fees charged
under the Federal Lands Recreation Enhancement Act, or the venue for
prosecuting violations of prohibitions under the proposed rule.
General Comments
Comment: One commenter believed that the proposed rule could be
beneficial to the safety of visitors to NFS lands if Forest Service law
enforcement officers were provided sufficient training.
Response: The Department agrees that training for Forest Service
law enforcement officers is critical, and training will be provided on
the final rule. In addition, Forest Service law enforcement officers
are already familiar with the prohibitions in the final rule and have
been enforcing several of the prohibitions included in subpart A of the
proposed rule through orders issued under subpart B of the existing
rule. The proposed and final rules streamline work and eliminate the
task of issuing orders for these prohibitions for each Agency
administrative unit and promote consistent enforcement of these
prohibitions nationwide.
Comment: One commenter asserted that the proposed rule would ensure
uniformity of enforcement.
Response: The Department agrees that the proposed and final rules
promote consistency in law enforcement on NFS lands.
Comment: One commenter expressed concern that the proposed rule
would lead to over-policing, would have a disparate impact on people of
color, and would lead to pretextual encounters that violate the privacy
of NFS visitors.
Response: The final rule is not expected to result in
disproportionately high and adverse impacts on minority or low-income
populations. Forest Service law enforcement officers are not exempt
from Federal civil rights and privacy laws and Executive orders,
including Executive Order 14074, Advancing Effective, Accountable
Policing and Criminal Justice Practices To Enhance Public Trust and
Public Safety, and must comply with requirements in the United States
Constitution regarding search and seizure. In addition, the final rule
will allow Forest Service law enforcement officers to enforce
possession of controlled substances on NFS lands under the Forest
Service's regulations as a Class B misdemeanor, as appropriate, rather
than under 21 U.S.C. 844(a) as a Class A misdemeanor or felony, which
carry harsher penalties.
Comment: One commenter asserted that the proposed rule bypassed
Congressional review and approval.
Response: The Forest Service submits all final rules, including
this final rule, to Congress in accordance with the Congressional
Review Act, 5 U.S.C. 801 et seq.
Comment: Some commenters expressed concern that the proposed rule
would adversely affect public safety. For example, one commenter
believed that assault under State law could be charged as disorderly
conduct under the proposed rule.
Response: In the limited circumstances when Forest Service law
enforcement officers qualify as peace officers under State law, they
are acting under State law. The proposed and final rules provide for
Forest Service enforcement of prohibitions, including the prohibition
on disorderly conduct, as enumerated in those rules, in accordance with
the Forest Service's statutory authority. The proposed and final rules
enhance consistency in law enforcement on NFS lands by providing for
enforcement of certain prohibitions without issuance of an order and
enhance consistency of the Forest Service's law enforcement practices
with those of State law enforcement agencies. The proposed and final
rules promote visitor and employee safety on NFS lands by adding
prohibitions relating to controlled substances, drug paraphernalia, and
alcoholic beverages; enhancing protection of persons visiting and
working on NFS lands from theft of personal property and from
disorderly conduct by other visitors; and enhancing fire prevention on
NFS lands.
Comment: Some commenters were concerned the proposed rule would
require citizens accused of even a minor offense to go through the
Central Violations Bureau (CVB) instead of being prosecuted in a United
States District Court. They believed that the CVB is not the
appropriate venue for processing minor offenses because it fails to
require behavioral programming to reduce the offenders' future threat
to the public, and that the proposed rule would preclude Forest Service
law enforcement officers from filing citations directly through the
State court system, which is designed to handle citations for minor
offenses. Another commenter expressed concern about reduced prosecution
of violations involving small amounts of a controlled substance.
Response: The proposed rule does not address use of the CVB, which
is a national center that provides for
[[Page 92810]]
electronic payment of United States District Court violation notices
issued for offenses committed on Federal property, including NFS lands.
The proposed and final rules provide for small amounts of a controlled
substance to be handled through issuance of a violation notice and
prosecution before a United States magistrate judge as a Class B
misdemeanor. Under the Agency's current regulations, violations for
simple possession of a controlled substance on NFS lands are often not
prosecuted because they involve small amounts that are insufficient to
meet guidelines for prosecution under 21 U.S.C. 844(a) before a United
States District Court judge as a Class A misdemeanor or felony.
Comment: A commenter believed the best way to ensure law and order
on Federal land was to work with State and local law enforcement. Other
commenters asserted that the purposes of the proposed rule could be
accomplished by contracting with local law enforcement agencies.
Response: The Forest Service agrees that cooperation with State and
local law enforcement agencies in the execution of their
responsibilities related to NFS lands enhances protection of persons
and property on NFS lands. Under the Cooperative Law Enforcement Act
(16 U.S.C. 551a), the Forest Service enters into cooperative law
enforcement agreements with State and local law enforcement agencies,
typically a county sheriff's office, that fund State and local law
enforcement where NFS lands and facilities account for increased
visitor use in their State. The Forest Service continues to seek
opportunities to expand these efforts.
Authority and Jurisdiction
Comment: Some commenters expressed concern regarding assimilation
of State law into the Forest Service's regulations.
Response: The proposed and final rules are not assimilating State
law under the Assimilative Crimes Act. The Assimilative Crimes Act (18
U.S.C. 13) authorizes Federal enforcement of State criminal laws on
Federal lands where the Federal Government has exclusive or concurrent
legislative jurisdiction. The United States has exclusive legislative
jurisdiction when it possesses all the authority of the State and the
State has not reserved to itself the right to exercise any of the
authority concurrently with the United States, with limited exceptions.
The United States has concurrent legislative jurisdiction when the
State has reserved to itself the right to exercise all the same
authority concurrently with the United States.
The United States does not have exclusive legislative jurisdiction
over any NFS lands. The United States generally has proprietary
jurisdiction, rather than concurrent legislative jurisdiction, over NFS
lands in the western States, which were reserved from the public domain
without conferring any measure of the States' authority over those
areas. For NFS lands in the eastern States that were acquired under the
Weeks Act (16 U.S.C. 515), the United States has concurrent legislative
jurisdiction only for those NFS lands acquired before February 1, 1940
(United States v. Raffield, 82 F.3d 611 (4th Cir.), cert. denied, 519
U.S. 933 (1996)). For NFS lands that were acquired under the Weeks Act
after February 1, 1940, the United States does not have concurrent
legislative jurisdiction until it formally accepts it (40 U.S.C. 255).
However, concurrent legislative jurisdiction, or the lack of it,
does not affect the Federal Government's broad authority when it has
proprietary jurisdiction to regulate Federal lands under the Property
Clause of the United States Constitution (art. IV, sec. 3, cl. 2) and
applicable Federal statutes and regulations. In incorporating State law
into its law enforcement regulations in 36 CFR part 261, the Forest
Service is exercising its authority under the Property Clause and the
Organic Administration Act of 1897 (16 U.S.C. 551), which authorize the
Agency to promulgate regulations protecting NFS lands and to enforce
Federal law on NFS lands.
Consistent with this authority, the Forest Service's existing
travel management and law enforcement regulations already incorporate
State law. For example, the Forest Service's travel management
regulations at 36 CFR 212.5(a)(1) incorporate and apply State traffic
law to NFS roads, unless State traffic law conflicts with motor vehicle
use designations established under 36 CFR part 212, subpart B, or
Forest Service regulations at 36 CFR part 261. The Forest Service's law
enforcement regulations at 36 CFR 261.8 prohibit certain conduct
affecting fish and wildlife, such as hunting and fishing, to the extent
State law is violated, and the Forest Service's law enforcement
regulations at 36 CFR 261.15 prohibit operating any vehicle off NFS,
State, or county roads without a valid license as required by State
law. Forest Service regulations are Federal law. When the Forest
Service enforces prohibitions in its regulations that incorporate State
law, the Forest Service is enforcing Federal law, not State law.
Comment: One commenter asserted that States would have to consent
to the Forest Service's exercise of jurisdiction, or would have to cede
jurisdiction, over the NFS lands in their States for the proposed rule
to be legally promulgated. Some commenters were concerned the proposed
rule would violate the United States Constitution and opposed the
proposed rule based on the Forest Service's lack of jurisdiction to
promulgate it.
Response: The Forest Service has jurisdiction over NFS lands and
does not have to obtain consent from States to exercise that
jurisdiction or have States cede jurisdiction to the Forest Service for
the proposed rule to be legally promulgated. The Forest Service has
broad authority to regulate NFS lands under the Property Clause of the
United States Constitution and the Organic Administration Act of 1897,
which authorizes the Agency to promulgate regulations protecting NFS
lands and to enforce Federal law on NFS lands. (U.S. Constitution.,
Art. IV, Sec. 3, cl. 2.)
The delegation of this Congressional authority to the Secretary of
Agriculture to regulate use and occupancy of NFS lands has been
recognized for over one hundred years. See Light v. United States, 220
U.S. 523 (1911); United States v. Grimaud, 220 U.S. 506 (1911). The
authority of the Secretary of Agriculture to promulgate regulations
protecting NFS lands is set forth in the Organic Administration Act of
1897 (16 U.S.C. 551), which authorizes regulations that regulate the
occupancy and use of the national forests and preserve them from
destruction; states that violation of those regulations shall be
punished by a fine or imprisonment or both; and provides that any
person charged with a violation of those regulations may be tried and
sentenced by any United States magistrate judge specially designated
for that purpose by the court appointing that United States magistrate
judge, in the same manner and subject to the same conditions as
provided for in 18 U.S.C. 3401(b)-(e). The Forest Service's law
enforcement regulations implementing this authority are codified at 36
CFR part 261.
Comment: One commenter believed the proposed rule was a direct
attempt to bypass State law enforcement. Some commenters were concerned
the proposed rule would usurp State statutory authority.
Response: The proposed and final rules complement or reinforce,
rather than bypass or usurp, State law enforcement authority. The
Organic
[[Page 92811]]
Administration Act of 1897 (16 U.S.C. 480) provides that the States do
not lose civil or criminal jurisdiction over their citizens on NFS
lands and may enforce State civil and criminal law on NFS lands within
the boundaries of their States. Consistent with that principle, the
Forest Service commonly enters into cooperative law enforcement
agreements with State and local law enforcement agencies that fund
State and local law enforcement where NFS lands and facilities account
for increased visitor use in their State. Further, the proposed and
final rules reinforce State law to the extent they incorporate it, as
with the new prohibitions that prohibit knowingly or intentionally
possessing drug paraphernalia in violation of State law, possessing an
alcoholic beverage in violation of State law, and providing an
alcoholic beverage to a minor in violation of State law.
Comment: One commenter believed the proposed rule would establish a
Federal enclave on all NFS lands in violation of the United States
Constitution (art. 1, sec. 8, cl. 17); 40 U.S.C. 255 and 3112; 50
U.S.C. 175; and the Assimilative Crimes Act (18 U.S.C. 13).
Response: The Assimilative Crimes Act (18 U.S.C. 13) authorizes
Federal enforcement of State criminal laws on Federal lands where the
Federal Government has exclusive or concurrent legislative
jurisdiction. In promulgating the final rule, the Forest Service is not
establishing a Federal enclave subject to exclusive legislative
jurisdiction under the Enclave Clause of the United States Constitution
or accepting concurrent legislative jurisdiction under 40 U.S.C. 255
and 3112 for purposes of enforcement of State criminal laws on NFS
lands under the Assimilative Crimes Act. Rather, in promulgating the
final rule, the Forest Service is exercising its proprietary
jurisdiction under the Property Clause of the United States
Constitution and the Organic Administration Act of 1897.
The Enclave Clause of the United States Constitution provides that
Congress has exclusive legislation over the District of Columbia and
over all parcels of land purchased by the Federal Government with the
consent of a State's legislature for the construction of forts,
magazines, arsenals, dockyards, and other needed buildings (U.S.
Constitution. Art. 1, Sec. 8, cl. 17).
A Federal enclave is a parcel of land over which the United States
has exclusive legislative jurisdiction. The United States has exclusive
legislative jurisdiction when it possesses all the authority of the
State, and the State has not reserved to itself the right to exercise
any of the authority concurrently with the United States, with limited
exceptions. The United States has concurrent legislative jurisdiction
when the State has reserved to itself the right to exercise all the
same authority concurrently with the United States. Title 40 of the
United States Code, sections 255 and 3112, provide that the United
States does not have to, but may, accept exclusive or concurrent
legislative jurisdiction of the land it acquires from the State where
the land is located (40 U.S.C. 255 and 3112).
The United States does not have exclusive legislative jurisdiction,
and generally does not have concurrent legislative jurisdiction, over
NFS lands. The United States generally has proprietary jurisdiction
over NFS lands in the western States, which were reserved from the
public domain without conferring any measure of the States' authority
over those areas. For NFS lands in the eastern States that were
acquired under the Weeks Act (16 U.S.C. 515), the United States has
concurrent legislative jurisdiction only for those NFS lands acquired
before February 1, 1940 (United States v. Raffield, 82 F.3d 611 (4th
Cir.), cert. denied, 519 U.S. 933 (1996)). For NFS lands that were
acquired under the Weeks Act after February 1, 1940, the United States
does not have concurrent legislative jurisdiction until it formally
accepts it (40 U.S.C. 255 and 3112).
However, concurrent legislative jurisdiction, or the lack of it,
does not affect the Forest Service's broad authority under its
proprietary jurisdiction to regulate NFS lands under the Property
Clause of the United States Constitution (art. IV, sec. 3, cl. 2) and
applicable Federal statutes and regulations. As stated in Kleppe v. New
Mexico, 426 U.S. 529, 543 (1976) (citations omitted):
Absent consent or cession, a State undoubtedly retains
jurisdiction over federal lands within its territory, but Congress
equally surely retains the power to enact legislation respecting
those lands pursuant to the Property Clause.
The Property Clause gives Congress the power to promulgate all
needed regulations regarding Federal property. Congress has delegated
this authority to the Secretary of Agriculture in the Organic
Administration Act of 1897 (16 U.S.C. 551). The Forest Service's law
enforcement regulations implementing this authority in the Property
Clause and the Organic Administration Act of 1897 are codified at 36
CFR part 261.
Occupancy, Use, and Conduct
Comment: Some commenters were concerned that public nudity would
become illegal in most locations on NFS lands (1) as a result of the
prohibition in the proposed rule on performing an act that is obscene
or threatening when committed intentionally to cause, or recklessly to
create a substantial risk of causing, public alarm, nuisance, jeopardy,
or violence; and (2) as a result of the reference in the preamble to
the proposed rule to ``indecent exposure'' as an example of such an
act. These commenters stated that the proposed rule should explicitly
define ``act that is obscene'' and ``indecent exposure'' and were
concerned that those terms could be interpreted to apply to social and
recreational nude activities.
Response: The proposed and final rules do not revise the existing
definition for ``publicly nude'' and the existing regulatory
prohibition on being publicly nude on NFS lands in the Forest Service's
law enforcement regulations. The Agency's existing law enforcement
regulations (36 CFR 261.2) define ``publicly nude'' as being in any
place where a person may be observed by another person and failing to
cover with a fully opaque garment the rectal area, pubic area, or
genitals and, in the case of a female person, failing to cover with a
fully opaque garment both breasts below a point immediately above the
top of the areola. The definition excludes persons under the age of 10
years. The Forest Service's existing law enforcement regulations
authorize the Agency to issue an order under 36 CFR 251.58(j) that
prohibits being publicly nude in specified areas on NFS lands.
The Department does not believe it is necessary or appropriate to
define the phrase, ``act that is obscene,'' in the final rule. To be
covered by the prohibition on disorderly conduct in Sec. 261.4(b), an
act that is obscene must be committed intentionally to cause, or
recklessly to create a substantial risk of causing, public alarm,
nuisance, jeopardy, or violence. This context clarifies the meaning of
the phrase, ``act that is obscene,'' and distinguishes it from social
and recreational nude activities to the extent they are not covered by
an order prohibiting being publicly nude. The Department also does not
believe it is necessary or appropriate to define the term, ``indecent
exposure,'' which is not used in the proposed and final rules and
merely appears in the preamble to the proposed rule as an example,
rather than as an element, of an act that is obscene or threatening
when committed
[[Page 92812]]
intentionally to cause, or recklessly to create a substantial risk of
causing, public alarm, nuisance, jeopardy, or violence.
Comment: One commenter was concerned about orders not completing a
formal process. Another commenter was concerned about the Forest
Service's compliance with issuing orders in accordance with the John D.
Dingell, Jr. Conservation, Management, and Recreation Act (Pub. L. 116-
9, Title IV (Sportsmen's Access and Related Matters)) (Dingell Act).
Response: The Forest Service's existing law enforcement regulations
at 36 CFR part 261, subpart B, were published for public notice and
comment in the Federal Register. These regulations authorize the Agency
to issue orders that impose temporary closures or restrictions only as
enumerated in 36 CFR part 261, subpart B, and only in specific
locations, based on site-specific conditions. Consistent with these
regulations, each order issued by the Forest Service describes the
specific area, road, or trail to which it applies; specifies the times
it applies; and states each prohibition it applies from those
enumerated in 36 CFR part 261, subpart B, and is displayed in such
locations and in such a manner as to reasonably bring the prohibition
in the order to the attention of the public.
As required by the Dingell Act and the Forest Service's
implementing directive in Forest Service Handbook 5309.11, chapter 30,
section 34, for temporary or permanent hunting, fishing, or
recreational shooting orders issued under 36 CFR part 261, subpart B,
the Forest Service provides advance notice to the public of the intent
to issue the proposed order for public comment, and provides public
notice and opportunity to comment on the proposed order, by completing
the following steps: (1) coordination with the appropriate State Fish
and Wildlife agency; (2) coordination with affected Indian Tribes, as
appropriate; (3) publication and other dissemination of an advance
notice of intent before publication of a notice of opportunity for
public comment; (4) publication of a notice of opportunity for public
comment; (5) publication of a response to comments received during the
comment period; and (6) issuance of the final temporary or permanent
hunting, fishing, or recreational shooting order.
Comment: Some commenters opposed the proposed revision to 36 CFR
261.53 that would allow for issuance of an order restricting use of an
area, as well as closure of an area in its entirety to all uses,
without local coordination and opposed the delegation of authority for
this purpose.
Response: The proposed and final rules do not change the delegation
of the Forest Service's authority to issue orders under 36 CFR part
261, subpart B. The Forest Service's regulations at 36 CFR 261.53
authorize the Agency to issue orders to protect species, archaeological
resources, scientific experiments or investigations, public health or
safety, property, and the privacy of Tribal activities for traditional
and cultural purposes. The Department believes having the flexibility
to restrict use of an area, as well as close it entirely, for these
purposes will allow the Forest Service to address these concerns in a
more targeted manner. For maximum effectiveness and awareness, the
Forest Service works closely with local authorities in issuing these
types of orders.
Comment: Some commenters opposed traffic enforcement by the Forest
Service on State and county roads and were concerned the proposed rule
would broaden traffic enforcement.
Response: The proposed and final rules do not address traffic
enforcement on State and county roads. Rather, the proposed and final
rules address traffic enforcement on NFS roads. An NFS road is defined
in the Forest Service's regulations to exclude a State or county road.
An NFS road is defined as a road (1) that is wholly or partly within or
adjacent to and serving the NFS that the Forest Service determines is
necessary for the protection, administration, and utilization of the
NFS and the use and development of its resources; and (2) that is not
authorized by a legally documented right-of-way held by a State,
county, or other local public road authority (36 CFR 212.1). The
proposed and final rules incorporate State traffic law in 36 CFR
261.12, which applies to NFS roads, so that State traffic law is
enforceable as Federal traffic law on NFS roads. Specifically, the
proposed and final rules incorporate two commonly cited violations of
State traffic law: operating a motor vehicle without a valid license
and operating a motor vehicle while under the influence of an alcoholic
beverage or a controlled substance. The proposed and final rules also
incorporate a catch-all prohibition that incorporates any other State
traffic laws so that they are enforceable as Federal traffic law. These
revisions simplify enforcement of State traffic law on NFS roads and
enhance consistency in enforcement of State traffic law.
Comment: Some commenters were concerned that under the proposed
rule fighting or assault would be charged as the lesser offense of
disorderly conduct.
Response: Disorderly conduct is a category of offense, not the
offense itself, for prohibitions enumerated in 36 CFR 261.4. Since June
1981, ``engaging in fighting'' has been prohibited as disorderly
conduct under 36 CFR 261.4(a). The disorderly conduct prohibitions in
the proposed and final rules add threatening or other violent behavior;
clarify the content by prohibiting making an utterance or performing an
act that is made or performed in a manner likely to inflict injury or
to incite an immediate breach of peace or that is obscene or
threatening. The proposed and final rules also add a criminal intent
element that the violator acted with the intent to cause, or recklessly
to create a substantial risk of causing, public alarm, nuisance,
jeopardy, or violence. Any violations of prohibitions in 36 CFR part
261, subpart A, or in an order issued under 36 CFR part 261, subpart B,
can be written as a mandatory appearance that requires the defendant to
appear in Federal court, rather than simply paying a collateral fine
through the CVB. States may also have the authority to enforce these
types of offenses under applicable State law.
Comment: Some commenters objected to including personal property
crimes in the proposed rule. Several commenters did not believe that
State and local law enforcement agencies were understaffed and
consequently constrained in their ability to respond promptly to
personal property crimes.
Response: Personal property crimes such as theft have become an
increasing problem on NFS lands. To effectively deal with this criminal
activity, Forest Service law enforcement officers need appropriate
tools to enforce Federal law effectively and professionally. This type
of criminal activity may take place in remote locations in the NFS that
are difficult to access and may not be routinely patrolled by State and
local law enforcement agencies due to staffing constraints. By adding a
prohibition against theft, the proposed and final rules allow Forest
Service law enforcement officers to assist victims of these type of
crimes and disrupt this type of criminal activity on NFS lands.
Comment: Some commenters recommended removing the proposed
prohibition on leaving personal property unattended for longer than 24
hours, except in locations where longer periods have been designated,
on the grounds that the proposed prohibition was unclear. Some
commenters were concerned about the proposed prohibition because they
believed that the determination of what constitutes ``abandoned
property'' was subjective.
[[Page 92813]]
Some commenters suggested a longer timeframe for leaving personal
property unattended to accommodate certain types of recreational
activities.
Response: Forest Service law enforcement personnel have encountered
a noticeable increase in personal property, such as camping and other
recreational equipment, being stored on NFS lands. Because the term
``abandon'' connotes relinquishing property without an intent to
reclaim possession, the Forest Service needs a better tool to manage
illegally stored personal property on NFS lands. The proposed rule
would prohibit leaving personal property unattended for longer than 24
hours, except in locations where longer periods have been designated.
Including a specified timeframe for leaving personal property
unattended is an objective way to establish relinquishment of the
property without an intent to reclaim it. In the final rule, the
Department is extending the timeframe for leaving personal property
unattended from 24 hours to 72 hours to accommodate certain types of
recreational activities such as hunting, backpacking, and fishing trips
and to be consistent with the Forest Service's regulations at 36 CFR
262.12, which establish a 72-hour timeframe for impoundment of
property.
Comment: Commenters expressed concern that the proposed revisions
to 36 CFR 261.10 governing occupancy and use would inappropriately
expand the Forest Service's law enforcement mission with respect to
driving under the influence and crimes affecting persons and property.
Response: The Organic Administration Act of 1897 gives the Forest
Service broad authority to promulgate regulations governing occupancy
and use of NFS lands and to criminally enforce violations of those
regulations (16 U.S.C. 551). The proposed and final rules prohibit
constructing, placing, or maintaining a sign on NFS lands or facilities
without an authorization; abandoning personal property on NFS lands;
possession of alcohol by a minor or possession of an open container in
a vehicle, where prohibited by State law; and providing an alcoholic
beverage to a minor in violation of State law. These revisions in the
proposed and final rules promote the Agency's mission to provide for
resource protection and address public health and safety on NFS lands
and complement enforcement of State law by State and local law
enforcement agencies on NFS lands.
Comment: Some commenters requested clarification concerning the
proposed revision prohibiting the construction, placement, or
maintenance of unauthorized signs on NFS lands or facilities.
Response: Unauthorized signs inhibit the public from fully
utilizing NFS lands and can create nuisances and hazards which can
inhibit appropriate use of NFS resources. Existing Forest Service
regulations at 36 CFR 261.10(a) prohibit constructing, placing, or
maintaining certain improvements on NFS lands or facilities without a
special use authorization, contract, approved plan of operations, or
other written authorization when such authorization is required. Signs
are not listed as a type of improvement that is prohibited without a
written authorization. Accordingly, the proposed and final rules revise
36 CFR 261.10(a) to prohibit constructing, placing, or maintaining a
sign on NFS lands or facilities without a written authorization, such
as a special use authorization, contract, or approved plan of
operations.
Fireworks and Exploding Targets
Comment: Multiple commenters believed that fireworks should be
regulated more on NFS lands, that it was necessary to have a
prohibition on use of fireworks and exploding targets on NFS lands, and
that the Forest Service should strive to prevent fires on NFS lands.
Response: The proposed and final rules enhance fire prevention on
NFS lands by moving prohibitions relating to fire that are currently
enforceable only through issuance of an order under 36 CFR part 261,
subpart B, to the prohibitions in 36 CFR part 261, subpart A, which are
generally applicable to NFS lands and enforceable without issuance of
an order. These prohibitions ban possession or use of fireworks or
other pyrotechnic devices on NFS lands; violation of any State law
concerning burning or fires or any State law whose purpose is to
prevent or restrict the spread of fire; and operation or use of any
internal or external combustion engine without a properly installed and
maintained spark-arresting device that meets specified requirements. In
addition, the proposed and final rules enhance fire prevention on NFS
lands by prohibiting the possession or use of exploding targets on NFS
lands.
Controlled Substances and Alcoholic Beverages
Comment: One commenter wondered how proposed prohibitions involving
controlled substances would be enforced in States where controlled
substances are legal.
Response: It is a violation of Federal law for a person knowingly
or intentionally to possess controlled substances (21 U.S.C. 844(a)).
Forest Service law enforcement officers enforce 21 U.S.C. 844(a) on NFS
lands, and in some circumstances off NFS lands, under the National
Forest System Drug Control Act of 1986 (16 U.S.C. 559b-559g).
Violations of 21 U.S.C. 844(a) require referral to the appropriate
United States Attorney's Office for the filing of a complaint or
information and prosecution before a United States District Court
judge. In many instances, violations for simple possession of a
controlled substance on NFS lands are not prosecuted under 21 U.S.C.
844(a) because they involve small amounts that are insufficient to meet
applicable prosecutorial guidelines. The proposed and final rules
provide an alternative to proceeding under 21 U.S.C. 844(a) by adding a
prohibition against knowingly or intentionally possessing a controlled
substance in violation of Federal law. Under this new prohibition,
possession of small amounts of a controlled substance can be handled
through issuance of a violation notice by a Forest Service law
enforcement officer and prosecution before a United States magistrate
judge as a Class B misdemeanor. Forest Service law enforcement
personnel can continue to refer cases involving larger amounts of
controlled substances that meet prosecutorial guidelines to the
appropriate United States Attorney's Office.
Comment: Some commenters believed that violations involving
controlled substances and alcoholic beverages should be prosecuted in
State court and that the Forest Service should limit the scope of
revisions to its law enforcement regulations regarding these types of
violations. Additionally, some commenters believed that the Forest
Service should use existing State law for enforcement of violations
involving alcoholic beverages.
Response: Violations of Federal law on or affecting NFS lands,
including violations of Federal laws involving controlled substances
and prohibitions in the Forest Service's law enforcement regulations at
36 CFR part 261, subpart A, and orders issued under 36 CFR part 261,
subpart B, are prosecuted in Federal court, not State court (16 U.S.C.
551). Forest Service law enforcement officers may enforce State law in
certain circumstances. Under 16 U.S.C. 553, Forest Service law
enforcement officers may aid in the enforcement of State laws
pertaining to stock, fires, and fish and game on NFS lands if
authorized by State officials. Under 16 U.S.C. 559d(5), Forest Service
law enforcement officers may accept designations of law
[[Page 92814]]
enforcement authority from State and local governmental agencies for
purposes of cooperating in multi-agency investigations of violations of
the Controlled Substances Act and other offenses committed in the
course of or in connection with those violations. Under 16 U.S.C.
559g(c), Forest Service law enforcement officers may accept
designations of law enforcement authority from State and local
governmental agencies for purposes of cooperating with those agencies
in investigation and enforcement if it is mutually beneficial and the
Forest Service and the cooperating agency have entered into a
memorandum of understanding or cooperative agreement. Some State
statutes authorize peace officers to take limited actions in response
to violations of State law in certain circumstances. When Forest
Service law enforcement officers qualify as peace officers under State
law, they may enforce State law.
Changes to the Proposed Rule
The Department is extending the timeframe for leaving personal
property unattended from 24 hours in the proposed rule to 72 hours in
the final rule to accommodate certain types of recreational activities
such as hunting, backpacking, and fishing trips and to be consistent
with the Forest Service's regulations at 36 CFR 262.12, which establish
a 72-hour timeframe for impoundment of property.
Regulatory Certifications
Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this final rule is not significant as defined
by E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Department has developed the final rule consistent with E.O. 13563.
Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this final rule as not a major rule
as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
The final rule streamlines enforcement of criminal prohibitions in
existing regulations by providing for enforcement without issuance of
an order and enhances consistency of the Forest Service's law
enforcement practices with those of State and other Federal land
management agencies. Agency regulations at 36 CFR 220.6(d)(2) exclude
from documentation in an environmental assessment or environmental
impact statement ``rules, regulations, or policies to establish
service-wide administrative procedures, program processes, or
instructions.'' The Department has concluded that this final rule falls
within this category of actions and that no extraordinary circumstances
exist which would require preparation of an environmental assessment or
environmental impact statement.
Regulatory Flexibility Act Analysis
The Department has considered the final rule under the Regulatory
Flexibility Act (RFA), 5 U.S.C. 602 et seq. The final rule streamlines
enforcement of criminal prohibitions in existing regulations by
providing for enforcement without issuance of an order and enhances
consistency of the Forest Service's law enforcement practices with
those of State and other Federal land management agencies. The final
rule will not have economic effects on small entities as defined by the
RFA. Therefore, the Department has determined that this final rule will
not have a significant economic impact on a substantial number of small
entities as defined by the RFA.
Federalism
The Department has considered the final rule under the requirements
of E.O. 13132, Federalism. The Department has determined that the final
rule conforms with the federalism principles set out in this E.O.; will
not impose any compliance costs on the States; and will not have
substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
the Department has concluded that the final rule does not have
federalism implications.
Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, requires Federal agencies to consult and coordinate with
Tribes on a government-to-government basis on policies that have Tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. The final rule streamlines enforcement of
criminal prohibitions in existing regulations by providing for
enforcement without issuance of an order and enhances consistency of
the Forest Service's law enforcement practices with those of State and
other Federal land management agencies. The Department has reviewed
this final rule in accordance with the requirements of E.O. 13175 and
has determined that this final rule will not have substantial direct
effects on Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
Therefore, consultation and coordination with Indian Tribal governments
is not required for this final rule.
Environmental Justice
The Department has considered the final rule under the requirements
of E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, and E.O. 14096,
Revitalizing Our Nation's Commitment to Environmental Justice for All.
The Department has determined that the final rule is not expected to
result in disproportionate and adverse impacts on communities with
environmental justice concerns or the exclusion of communities with
environmental justice concerns from meaningful involvement in
decisionmaking.
Family Policymaking Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for a rule that may affect family
wellbeing. The final rule will have no impact on the autonomy or
integrity of the family as an institution. Accordingly, the Department
has concluded that it is not necessary to prepare a Family Policymaking
Assessment for the final rule.
[[Page 92815]]
Takings Implications
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protect Property Rights. The
Department has determined that the final rule will not pose the risk of
a taking of private property.
Energy Effects
The Department has reviewed the final rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that the final rule
will not constitute a significant energy action as defined in E.O.
13211.
Civil Justice Reform
The Department has analyzed the final rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. Upon
publication of the final rule, (1) all State and local laws and
regulations that conflict with the final rule or that impede its full
implementation will be preempted; (2) no retroactive effect will be
given to this final rule; and (3) it will not require administrative
proceedings before parties may file suit in court challenging its
provisions.
Unfunded Mandates
Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of the final
rule on State, local, and Tribal governments and the private sector.
The final rule will not compel the expenditure of $100 million or more,
adjusted annually for inflation, in any 1 year by State, local, and
Tribal governments in the aggregate or by the private sector.
Therefore, a statement under section 202 of the Act is not required.
Paperwork Reduction Act
The final rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set forth in the preamble, the
Department is amending chapter II of title 36 of the Code of Federal
Regulations as follows:
PART 261--PROHIBITIONS
0
1. The authority citation for part 261 continues to read:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551,
620(f), 1133(c)-(d)(1), 1246(i).
0
2. Revise Sec. 261.1b to read as follows:
Sec. 261.1b Penalty.
Unless otherwise provided by law, the punishment for violation of
any prohibition in or order issued under this part shall be
imprisonment of not more than six months or a fine in accordance with
the applicable provisions of 18 U.S.C. 3571 or both.
0
3. Amend Sec. 261.2 by:
0
a. Adding in alphabetical order definitions for ``Alcoholic beverage''
and ``Controlled substance'';
0
b. Revising the definition for ``Developed recreation site''; and
0
c. Adding in alphabetical order definitions for ``Exploding target'',
``Firework'', ``Pyrotechnic device'', and ``Recreation site''.
The additions and revision read as follows:
Sec. 261.2 Definitions.
* * * * *
Alcoholic beverage means alcoholic beverage as defined by State
law.
* * * * *
Controlled substance means a drug or other substance, its immediate
precursor included in schedules I, II, III, IV, or V of section 202 of
the Controlled Substance Act (21 U.S.C. 812), or a drug or other
substance added to these schedules under the terms of the Act.
* * * * *
Developed recreation site has the same meaning as in chapter 50 of
Forest Service Handbook 2309.13.
* * * * *
Exploding target means a binary explosive consisting of two
separate components (usually an oxidizer like ammonium nitrate and a
fuel such as aluminum or another metal) that is designed to explode
when struck by a bullet.
* * * * *
Firework has the same meaning as in 27 CFR 555.11 or a successor
regulation.
* * * * *
Pyrotechnic device has the same meaning as the term ``articles
pyrotechnic'' in 27 CFR 555.11 or a successor regulation.
* * * * *
Recreation site has the same meaning as in chapter 50 of Forest
Service Handbook 2309.13.
* * * * *
0
4. Revise Sec. 261.4 to read as follows:
Sec. 261.4 Disorderly conduct.
The following are prohibited when committed intentionally to cause,
or recklessly to create a substantial risk of causing, public alarm,
nuisance, jeopardy, or violence:
(a) Engaging in fighting or any threatening or other violent
behavior.
(b) Making an utterance or performing an act that is obscene or
threatening or that is made or performed in a manner that is likely to
inflict injury or incite an immediate breach of peace.
(c) Making noise that is unreasonable considering the nature and
purpose of the conduct, location, and time.
0
5. Amend Sec. 261.5 by adding paragraphs (h) through (j) to read as
follows:
Sec. 261.5 Fire.
* * * * *
(h) Possessing or using an exploding target or any kind of firework
or other pyrotechnic device.
(i) Violating any State law concerning burning or fires or any
State law that is for the purpose of preventing or restricting the
spread of fire.
(j) Operating or using any internal or external combustion engine
without a spark arresting device that is properly installed,
maintained, and in effective working order in accordance with USDA
Forest Service Standard 5100-1.
0
6. Amend Sec. 261.9 by adding paragraph (j) to read as follows:
Sec. 261.9 Property.
* * * * *
(j) Damaging or removing without authorization any personal
property that belongs to another person.
0
7. Amend Sec. 261.10 by revising paragraphs (a), (e), (o), and (p) and
adding paragraphs (q) through (s) to read as follows:
Sec. 261.10 Occupancy and use.
* * * * *
(a) Constructing, placing, or maintaining any kind of road, trail,
structure, fence, enclosure, communications equipment, sign, or other
improvement on National Forest System lands or facilities or making a
significant surface disturbance on National Forest System lands without
a special use authorization, contract, approved plan of operations, or
other written authorization when that written authorization is
required.
* * * * *
(e) Leaving personal property unattended for longer than 72 hours,
except in locations where longer periods have been designated.
* * * * *
[[Page 92816]]
(o) Use or occupancy of National Forest System lands or facilities
without a special use authorization, contract, approved plan of
operations, or other written authorization when that written
authorization is required.
(p) Knowingly or intentionally possessing any controlled substance
in violation of Federal law.
(q) Knowingly or intentionally possessing any drug paraphernalia in
violation of State law.
(r) Possessing any alcoholic beverage in violation of State law.
(s) Providing any alcoholic beverage to a minor in violation of
State law.
0
8. Amend Sec. 261.12 by adding paragraphs (e) through (i) to read as
follows:
Sec. 261.12 National Forest System roads and trails.
* * * * *
(e) Operating a motor vehicle without a valid license as required
by State law.
(f) Operating a motor vehicle while under the influence of an
alcoholic beverage or a controlled substance in violation of State law.
(g) Operating a motor vehicle in violation of any State law other
than those described in paragraph (e) or (f) of this section.
(h) Operating a vehicle or motor vehicle carelessly, recklessly, or
in a manner or at a speed that would endanger or be likely to endanger
any person or property.
(i) Operating a motor vehicle in violation of a posted sign or
traffic control device.
0
9. Amend Sec. 261.15 by revising paragraphs (e) and (g) to read as
follows:
Sec. 261.15 Use of vehicles off roads.
* * * * *
(e) While under the influence of an alcoholic beverage or a
controlled substance in violation of State law.
* * * * *
(g) Carelessly, recklessly, or in a manner or at a speed that
endangers or is likely to endanger any person or property.
* * * * *
0
10. Amend Sec. 261.50 by revising paragraphs (a) and (b) to read as
follows:
Sec. 261.50 Orders.
(a) The Chief, each Regional Forester, each Experiment Station
Director, the head of each administrative unit, their deputies, or
persons acting in these positions may issue orders, consistent with
their delegations of authority, that close or restrict the use of
described areas by applying the prohibitions authorized in this
subpart, individually or in combination.
(b) The Chief, each Regional Forester, each Experiment Station
Director, the head of each administrative unit, their deputies, or
persons acting in these positions may issue orders, consistent with
their delegations of authority, that close or restrict the use of any
National Forest System road or National Forest System trail.
* * * * *
0
11. Revise Sec. 261.52 to read as follows:
Sec. 261.52 Fire.
When provided by an order, the following are prohibited:
(a) Building, maintaining, attending, or using a fire, campfire, or
stove fire.
(b) Using an explosive.
(c) Smoking.
(d) Smoking, except within an enclosed vehicle or building, at a
recreation site, or while stopped in an area at least 3 feet in
diameter that is barren or cleared of all flammable material.
(e) Entering or being in an area.
(f) Entering an area without any firefighting tool prescribed by
the order.
(g) Operating an internal combustion engine.
(h) Welding or operating an acetylene or other torch with open
flame.
0
12. Amend Sec. 261.53 by revising the section heading and introductory
text to read as follows:
Sec. 261.53 Special closures or restrictions.
When provided by an order, it is prohibited to go into or be in any
area which is closed or restricted for the protection of:
* * * * *
0
13. Amend Sec. 261.54 by removing paragraph (f).
0
14. Amend Sec. 261.58 by revising paragraphs (b), (d), and (bb) to
read as follows:
Sec. 261.58 Occupancy and use.
* * * * *
(b) Entering or using a recreation site or portion thereof.
* * * * *
(d) Occupying a recreation site with prohibited camping equipment
prescribed by the order.
* * * * *
(bb) Possessing an alcoholic beverage.
* * * * *
Homer Wilkes,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2024-27555 Filed 11-22-24; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on November 25, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.